the street, in attempting to climb upon the pile, had pulled it over upon himself, and was killed. There was no charge of contributory negligence, either on the part of the child nor of his mother, who had, a few moments before, permitted him to go out to play. The only question in the case as submitted to us was whether there was actionable negligence on the part of the defendant in respect to piling the lumber. The result demonstrated that it was piled in such a manner that the weight of a little child climbing upon it, on the side toward the curbstone, was liable to throw it. down, and other evidence was given as to the manner in which the pile was constructed.

We think the question above stated should have been submitted to the jury. Assuming that the defendant had a right, under the circumstances, to pile the lumber in the street, it was undoubtedly his duty to pile it in such position and in such manner as not unnecessarily to impede the public use of the highway, and, still more, so as not to endanger the life or limb of those passing therein. He was bound to know that young children were likely to be at play on the street, and it is probably not unreasonable to charge him with the knowledge that a pile of new lumber is a very attractive object to such children, and is likely to become the scene of their exploits and sports. Unquestionably, reasonable care is required of the person erecting such an object on the public street that it shall not be a source of danger to any person using the street in any reasonable or ordinary manner. It was for the jury to say whether precisely what this little boy did was not one of those things that was to have been expected to occur, and against the fatal consequences of which the defendant ought to have used reasonable care to provide. That this lumber could have been piled in such a way as not to have been precipitated by the weight of a child of five years of age is undoubtedly true; whether in the exercise of reasonable care it would have been so piled seems, really, to be the only question in this case. The. cases of Kunz v. City of Troy, 104 N. Y., 344; 5 N. Y. State Rep., 642; Bransom's Adm'r, v. Labrot, 81 Ky., 638; Lynch v. Nurdin, 41 Eng. C. L., 422, are all in the line of the reasoning here suggested.

As we have indicated, no question of contributory negligence was made; it was, of course, conceded that the child himself was non sui juris, and, therefore, incapable of negligence, and any possible question of the negligence of the person having him in charge was expressly waived, at least for the purpose of this appeal.

We think it was error to take the question of the defendant's negligence from the jury, and that for that reason the judgment must be reversed and a new trial granted.

CORLETT, J., concurs; MACOMBER, J., not sitting.

Judgment reversed and a new trial granted, with costs to abide the event.

EMMETT STEVENS, Resp't, v. MARSHALL J. AYERS, Adm'r,

App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. ACCOUNT STATED-FACTS NECESSARY TO CONSTITUTE.

It is essential to an account stated that the party to be charged should, either expressly or by implication, admit the correctness of the account as a claim against him.

2. SAME.

On presentation of the claim in suit to defendant's testator, he expressed surprise at the amount; declared that it belonged to another person to pay; suggested a possible defense or counterclaim, and ended with a promise to pay to avoid trouble. Held, that this was no admission that the indebtedness was his own or of the correctness of the amount and that the facts did not constitute an account stated.

APPEAL from an order of the Monroe special term, denying defendant's motion to confirm the report of a referee and granting plaintiff's motion for a new trial, in a case of a reference, under the statute, of a disputed claim against the estate of a deceased person.

Eli Soule, for app'lt; DeM. Page, for resp't.

DWIGHT, P. J.-The claim referred was against the estate of Thomas Hallett, deceased, as upon an account stated in his lifetime. The evidence in support of it was in the testimony of an attorney who presented a statement of the amount to Mr. Hallett a month before his death, and who gave the following version of what took place: "I think he took it and looked at it and said the account was larger than he thought it was, and said that Perry ought to have paid it. I said that I did not know anything about that, but that it was left with me to sue if not paid at once. said Emmett better not sue it as he was carrying a watch that belonged to him. I said that had nothing to do with it, as my instructions were to sue it. He then says I will see Emmett and pay it. I will have no trouble about it."

He

This narrative, substantially repeated on cross-examination, is all the evidence in the case in support of the plaintiff's claim. We think it falls short of establishing an account stated between the plaintiff and the deceased.

It is essential to an account state that the party to be charged should, either expressly or by implication, admit the correctness of the account as a claim against him. In this case the deceased began by expressing surprise at the amount of the bill; then declared that it belonged to another person to pay it; then suggested a possible defense or counterclaim, and ended by a naked promise to pay it to avoid trouble. All this, it is true, he might have done if the indebtedness had been his own and the amount undoubtedly correct; but what he said was no admission of either of those facts, while his promise to pay rather than have trouble indicated an unwillingness to concede that the amount represented a just debt which he was bound to pay.'

.

Moreover the account as presented to the administrator shows on its face that the principal item originated in transactions be-.

tween the plaintiff and Perry Hallett, the person mentioned by the deceased as the one who ought to have paid the account. The item referred to is as follows:

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September 1, 1882, to amount due on dissolution of ship between Perry J. Hallett and Emmett Stevens, $112.'

partner

The item is entirely unexplained by the evidence; there is nothing to suggest a reason why Thomas Hallett should have been asked to pay it. In order to charge his estate with its payment after his death, on the principle of an account stated, the evidence of his admission of its correctness, as a charge against him, should be clear and unequivocal.

Of course there could be no recovery upon the promise of the deceased as such. An account stated consists not in a promise to pay but in an admission that the account is just and true. The promise is of no effect except by way of admission that the debt is that of the promisor. If it is that of another, such a promise is without consideration and void by the statute of frauds.

The evidence being undisputed it was a question of law whether the facts constituted an account stated. Lockwood v. Thorne, 18 N. Y., 285, 288. We think the referee was justified in this case in holding that an account stated was not established, and that his report dismissing the claim should have been confirmed.

The order of the special term should be reversed and the report of the referee confirmed.

MACOMBER and CORLETT, JJ., concur.

Order of special term reversed and report of the referee confirmed, with costs of this appeal and of the special term.

GEORGE HENRY, Resp't, v. THE NEW YORK, LAKE ERIE & WESTERN RAILROAD COMPANY, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890. 1. EVIDENCE-PHYSICIANS-CODE CIV. PRO., § 834.

Testimony of a physician who examined plaintiff at the request of his attending physician, as to the result of such examination is not incompetent under 834 of the Code, where it does not appear that he was requested or expected to treat or prescribe for plaintiff, or that he did either. To bring the case within the statute it must appear that the relation of physician and patient existed, and that the information obtained was necessary to enable the physician to act in that capacity.

2. SAME.

It is not the duty of the party offering such testimony to show that the relation of physician and patient did not exist; but it is the duty of the party objecting to support his objection by proof of facts necessary to bring the case within the definition on which it is based.

APPEAL from a judgment entered on the verdict of a jury, at the Chautauqua circuit, and from an order denying the defendant's motion for a new trial on the minutes.

J. H. Stevens, for app'lt; Ansley & Davie, for resp't.

DWIGHT, P. J.-The single exception taken by the defendant in this case must be fatal to the judgment. The action was for a personal injury alleged to have been sustained by the plaintiff

when a passenger on the defendant's road. The question litigated was of the existence and extent of the injury; the principal injury complained of being a broken rib. The defendant called as a witness a physician and surgeon, Dr. Wilcox, who testified that, some two weeks after the accident, the attending physician of the plaintiff brought the latter to the office of the witness, and asked him to examine the plaintiff and see what was the matter with him, and that he made such examination, and among other things examined his ribs. He was thereupon asked "did you find any fractured rib?"

To this question the plaintiff objected as incompetent under 834 of the Code. The objection was sustained and the defendant excepted.

We think the question was not shown to be within the exclusion of the statute referred to. That statute is specific in its definition of the matters which the physician is forbidden to disclose. The exclusion is confined to "information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." It is clear that to bring the case within the provision of the statute it must appear that the relation of physician and patient existed between the examining physician and the person examined; and even that is not sufficient; it must also appear that the information obtained was necessary to enable the physician to act in that capacity. There is nothing in this case to show that Dr. Wilcox was requested or expected to treat or prescribe for the plaintiff, nor to advise in respect to his treatment, nor that he did either. So far as appears, the purpose of procuring the examination was to qualify, or, as counsel for the defendant suggests, to disqualify the physician as a witness on the trial of the plaintiff's action. The error of the learned court at the circuit was in holding that it was the duty of the defendant, offering the testimony, to show that the relation of physician and patient did not exist, and, therefore, that the objection did not apply. Clearly it was incumbent upon the plaintiff to support his objection by proof of the facts necessary to bring the case within the definition upon which the objection was based.

For the error of the exclusion of the testimony of Dr. Wilcox, as the case stood, the judgment and order must be reversed and a new trial granted.

MACOMBER and CORLETT, JJ., concur.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.

EBENEZER S. CADY, Resp't, v. THE SPRINGVILLE WATER WORKS CO., App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) EASEMENT RIGHT TO DRAW WATER FROM SPRING.

Plaintiff was the owner of a lot, appurtenant to which was an easement of a right to draw water from a spring on another lot across the highway. By conveyances between him and the owner of said lot plaintiff released N. Y. STATE REP., VOL. XXXII.

3

[Sup.Ct. his interest in said spring and said owner conveyed to him the privilege of taking the water by a half-inch pipe from the main pipe leading from the spring for the use of his family, which conveyance was recorded, and such connection made. Subsequently the spring was conveyed to the defendant with the right to maintain a reservoir and lay pipes to the street. It thereupon took up the old pipes and laid mains of its own, thereby cutting off plaintiff's supply of water. Held, that by his deed plaintiff took an easement consisting of a right to take the water from the spring by means of the main pipe; that defendant took its deed with notice of and subject to plaintiff's right and had no right to remove the pipe without replacing it by a main which would afford him the same facilities, and that an injunction requiring it to restore plaintiff's connection with the spring by its own mains or otherwise, was properly granted.

APPEAL from a judgment entered on the findings and decision of the court at special term (Erie, May, 1889).

W. W. Ticknor, for app'lt; Thos. Penney, for resp't.

DWIGHT, P. J.-For many years before the date of the conveyance hereafter mentioned, the plaintiff was the owner of a lot on the south side of Main street in the village of Springville, appurtenant to which was an easement in another lot on the same side of Main street and separated from the plaintiff's only by a highway known as Elk street. The easement was the right to take water from a spring on the latter for the use of the former premises. Before 1877 or 1878 the spring was open and the plaintiff exercised his easement by taking water therefrom in pails. About the date last mentioned the spring was enclosed by a reservoir and a pump log was laid therefrom through Elk and Main streets past the premises of the plaintiff, which conveyed water to several premises further down the street.

In 1880 one Myers became the owner of the lot on which the spring was situated, and two years thereafter he and the plaintiff executed and delivered, concurrently, to each other, their several conveyances, which were duly acknowledged, and that from Myers to the plaintiff was duly recorded in the same year.

Both conveyances recited the existence of the easement appurtenant to the plaintiff's tenement, and the acquisition of the servient tenement by Myers, and the conveyance by the latter proceeded: "Now therefore this indenture witnesseth that I, the said John P. Myers, in consideration of the release to me by the said Ebenezer S. Cady, his heirs and assigns, of all the right, title and interest in and to said spring of water, have granted and conveyed, and by these presents do grant and convey to the said Ebenezer S. Cady, his heirs and assigns, the right and privilege of taking and conveying by a half inch pipe from the main pipe leading from the spring of water aforesaid along Main street all the water that may be necessary for the family use of the said Ebenezer S. Cady, or the heirs and assigns of the said Ebenezer S. Cady, holding and occupying the said lot and to hold the said right and privilege to the said Ebenezer S. Cady, his heirs and assigns forever."

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to have

The conveyance from the plaintiff to Myers, after reciting the same facts as the other, and that the water from the spring was being conveyed in pipes through the streets of the village, pro